Citation Nr: 0110011
Decision Date: 04/05/01 Archive Date: 04/11/01
DOCKET NO. 96-14 507 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to an initial rating in excess of 10 percent
for a cervical spine disability for the period from February
18, 1971, to July 25, 1995.
2. Entitlement to an initial rating in excess of 20 percent
for a cervical spine disability for the period beginning July
26, 1995, and thereafter.
REPRESENTATION
Appellant represented by: John Stevens Berry, Attorney
ATTORNEY FOR THE BOARD
Kristi Barlow, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1968 to February
1971.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an August 1995 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Lincoln, Nebraska, which implemented a directive from VA's
Compensation and Pension Service finding that prior action
denying service connection for a cervical spine disorder had
been clearly and unmistakably erroneous. By RO action in
August 1995, a grant of service connection for the surgical
absence of the spinous processes at C-6 and C-7 and post-
traumatic arthritis at C-6 and C-7, residuals of an old
compression fracture, was effected and a 10 percent rating
was assigned therefor under 38 C.F.R. § 4.71a, Diagnostic
Code 5285-5290, effective from the day following the
veteran's discharge from service, February 18, 1971.
An appeal followed and the Board, by its decision of June
1997, increased the rating assigned for the veteran's
cervical spine disability from 10 percent to 20 percent as
moderate limitation of motion had been shown upon VA
examination performed in October 1995. In effecting the
Board's decision, the RO, in a July 1997 rating
determination, assigned the 20 percent evaluation effective
as of July 26, 1995, the date the veteran submitted his
request for administrative review of the February 1972 rating
decision based on clear and unmistakable error.
An appeal of the Board's June 1997 decision was thereafter
taken to the United States Court of Appeals for Veterans
Claims (Court) and the parties to such appeal moved the Court
to vacate the Board's decision and remand the matter for
further review. Upon return to the Board, a remand was
entered in August 1998 so that additional procedural and
evidentiary development could be undertaken. Following the
RO's completion of the requested actions, the case was
returned to the Board for additional consideration. During
the course of this appeal, however, the Court rendered a
decision in Fenderson v. West, 12 Vet. App. 119 (1999)
regarding development required for the assignment of
separate, or "staged" ratings, for separate periods of
time. Because the RO had not had an opportunity to develop
this case pursuant to Fenderson, the Board again remanded
this case to the RO for additional procedural and evidentiary
development in March 2000. Following this additional
development, the case has been returned to the Board for
consideration.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran has post-traumatic arthritis of the C-6 and
C-7 cervical vertebra with C-7 radiculopathy. In February
1972, there were objective medical findings of slight
limitation of motion of the neck on lateral inclination and
tenderness over the trapezii.
3. In October 1995, the veteran had 25 degrees of forward
flexion in his neck, 30 degrees of backward extension, almost
40 degrees of lateral flexion, 45 degrees of rotation to the
right and 55 degrees to the left. This limitation of motion
is deemed to be moderate.
4. On August 12, 1998, the veteran had 30 degrees of forward
flexion, approximately 20 degrees of backward extension,
almost 40 degrees of lateral flexion in both directions, 45
degrees of rotation to the right and 40 degrees to the left.
This limitation of motion coupled with the veteran's
increased complaints of pain is deemed to be severe.
CONCLUSIONS OF LAW
1. The schedular criteria for an initial disability
evaluation in excess of 10 percent for the surgical absence
of the spinous processes at C-6 and C-7 and post-traumatic
arthritis at C-6 and C-7, residuals of an old compression
fracture, for the period of February 18, 1971 to July 25,
1995, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59, 4.71, 4.71a,
Diagnostic Code 5290, 5293 (2000).
2. The schedular criteria for an initial disability
evaluation in excess of 20 percent for the surgical absence
of the spinous processes at C-6 and C-7 and post-traumatic
arthritis at C-6 and C-7, residuals of an old compression
fracture, have not been met for the period of July 26, 1995,
through August 12, 1998. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 3.400, 4.1-4.16, 4.40, 4.45, 4.59, 4.71,
4.71a, Diagnostic Codes 5290, 5293 (2000).
3. The schedular criteria for a disability evaluation in
excess of 20 percent, specifically 30 percent, for the
surgical absence of the spinous processes at C-6 and C-7 and
post-traumatic arthritis at C-6 and C-7, residuals of an old
compression fracture, have been met as of August 12, 1998.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.400,
4.1-4.16, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5290
(2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset of this decision, the Board finds that the RO
has met its duty to assist the veteran in the development of
these claims under the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). By virtue
of the Statement of the Case and the two Supplemental
Statements of the Case issued during the pendency of the
appeal, the veteran and his attorney were given notice of
the information, medical evidence, or lay evidence necessary
to substantiate the veteran's claims. The veteran was
afforded VA examinations and independent medical
evaluations, and the RO made reasonable efforts to obtain
relevant records adequately identified by the veteran. In
fact, it appears that all evidence identified by the veteran
relative to these claims has been obtained and associated
with the claims folder. Service medical records were
obtained and associated with the claims folder as well as
copies of VA and independent examination reports. As such,
the Board finds that the RO has met its duty to assist.
I. Background
The veteran injured his neck prior to service and underwent
surgical intervention during service. Upon discharge from
service, the veteran applied for compensation benefits for a
cervical spine disorder and in February 1972, underwent VA
examination. He complained of continuing discomfort between
the shoulder blades since the surgery, as well as stiffness
and tightness in the shoulders with exertion. Upon
examination, the veteran was found to have tenderness over
the trapezii, normal arm strength, a slight limitation of
motion of the neck on lateral inclination. Motor strength
in the upper extremities appeared to be normal. His
cervical spine had normal range of motion. He had a
tingling sensation over the left shoulder blade and the
posterior aspect of the left arm and into the middle digits
of the left hand with extension and lateral flexion to the
left of the cervical spine. The veteran was diagnosed as
having post-traumatic arthritis of the C-6 and C-7 cervical
vertebra with C-7 radiculopathy. On February 24, 1972, the
RO denied service connection for a cervical disorder. The
report of the examination reflected clearly that the
compression fracture clearly was before service.
On July 26, 1995, the RO received a request from the
veteran, through his representative, to review the February
24, 1972, denial of service connection for a cervical
disorder. In August 1995, the RO found that clear and
unmistakable error existed in the February 1972 denial and
granted service connection for the surgical absence of the
spinous processes at C-6 and C-7 and post-traumatic
arthritis at C-6 and C-7, residuals of an old compression
fracture, assigning a 10 percent disability evaluation
effective February 18, 1971. The RO noted at that time that
a VA examination would be scheduled in order to assess the
current status of the veteran's disability.
Treatment records dated from May 1983 to August 1995 were
obtained and associated with the veteran's claims folder.
These records reveal only infrequent complaints about the
neck and upper extremities until recently. During the 1980s
and early 1990s he was seen for many upper respiratory and
related problems. He had knee and low back ailments. There
are no findings of limitation of motion contained in these
records nor is there evidence of muscle spasm in the
cervical spine area.
In August and September 1995, the veteran submitted
seventeen lay statements from friends and family. These
statements speak to the individual's observations of the
veteran's neck and back over the years. It was indicated
that he had to stop working as a welder.
In October 1995, the veteran underwent VA examination and
complained of stiffness and tightness in his neck with some
left arm involvement. Upon examination, the veteran was
found to have 25 degrees of forward flexion in his neck, 30
degrees of backward extension, almost 40 degrees of lateral
flexion, 45 degrees of rotation to the right and 55 degrees
to the left. X-rays revealed degenerative changes of the
lower cervical column and the veteran was diagnosed as
having degenerative joint disease of the cervical spine.
Treatment records dated from August 1995 through May 2000,
show continued complaints of neck pain with numbness into the
upper extremities. The veteran reports that he continues to
work as a street supervisor, performing above the shoulder
work as well as heavy manual work. Nerve conduction studies
performed in March 1998, confirm the findings of chronic C-7
radiculopathy; however, it was noted that there were no
ongoing denervations in the left upper extremity C-7 myotome.
Mild left carpal tunnel syndrome was also found. Magnetic
resonance imaging performed in April 1998, was consistent
with chronic compression deformities of the C-6 and C-7
vertebral bodies resulting in compression of the cervical
spinal cord.
In August 1998, the veteran underwent VA examination. He
complained of pain with all movement of his head, most
notably when looking up. Upon examination, the veteran was
found to have 30 degrees of forward flexion, approximately 20
degrees of backward extension, almost 40 degrees of lateral
flexion in both directions, 45 degrees of rotation to the
right and 40 degrees to the left. There were no neurologic
abnormalities and the veteran was diagnosed as having a long-
standing history of degenerative joint disease of the
cervical spine.
Independent medical opinions were sought in April 1999. D.
A. Mowry, D.O. performed a complete record review and
examination of the veteran and opined that he had
degenerative joint disease of the cervical spine with
probable chronic C-7 radiculopathy. Dr. Mowry noted that the
veteran did not require a neck brace, that he exhibited pain
particularly in the extension of his neck, and that he was
able to forward flex to 12 degrees in a rested position and
to 22 degrees with active flexion, to extend up to 20
degrees, and bend to the left 16 degrees and to the right 12
degrees. There were no muscle spasms on the right or left
cervical paraspinal or trapezius region. The veteran was
able to perform rapid alternating movements with the right
and left hands as well as thumb to fingers with either hand.
Jan C. Weber, M.D. also performed a records review and
examination of the veteran in April 1999. Peripheral pulses
were found to be intact with no bruits noted. The veteran
did exhibit some mild atrophy of the left triceps and biceps,
shown by measurement, and the deep tendon reflexes were
decreased in the left arm. Good rotation of the shoulders
was found, with limited neck rotation and extension. Dr.
Weber opined that the veteran had C-7 radiculopathy on the
left as well as cervical spine degenerative joint disease.
II. Analysis
Disability evaluations are determined by the application of
the schedule of ratings which is based on average impairment
of earning capacity. See 38 U.S.C.A. § 1155. Separate
Diagnostic Codes identify the various disabilities. Where
entitlement to compensation has been established and an
increase in the disability rating is at issue, the present
level of disability is of primary concern. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). Consideration must also be
given, however, to whether the case warrants the assignment
of separate ratings for separate periods of time, a practice
known as "staged" ratings. See Fenderson v. West, 12 Vet.
App. 119 (1999).
Diagnostic Code 5285 sets out criteria for evaluating the
residuals of a fractured vertebra. If the resulting
disability is not so severe as to require a neck brace, long
leg braces, or constant bed rest, it is to be rated in
accordance with definite limited motion or muscle spasm,
adding 10 percent for demonstrable deformity of the vertebral
body. There is no evidence that the fracture occurred during
service. Rather, it is apparent that the compression
fracture and resulting deformity happened prior to service.
At all stages of the veteran's disability, the diagnostic
codes for limitation of motion and intervertebral disc
syndrome have been considered and applied.
The Board notes that the veteran has requested that his
disability be evaluated under Diagnostic Code 5293, which
sets out the criteria for evaluating intervertebral disc
syndrome. Specifically, there must be evidence of persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to the
site of the diseased disc. A 10 percent evaluation is
assigned for mild symptoms, a 20 percent evaluation is
assigned for moderate symptoms, a 40 percent evaluation is
assigned for severe symptoms, and a 60 percent evaluation is
assigned for pronounced symptoms with little relief.
Based on the evidence as outlined above, the Board agrees
that symptomatology similar to that of an intervertebral disc
syndrome may be considered by analogy as an alternative
diagnostic code under Code 5293. In this regard, it is noted
that Code 5293 includes, among other criteria, limitation of
motion which is provided for under Code 5290.
Diagnostic Code 5290 sets out the criteria for evaluating
limitation of the cervical spine. A 10 percent evaluation is
assigned for slight limitation, a 20 percent evaluation is
assigned for moderate limitation, and a 30 percent evaluation
is assigned for severe limitation.
38 C.F.R. §§ 4.40 and 4.45 require the Board to consider the
veteran's pain, swelling, weakness, and excess fatigability
when determining the appropriate evaluation for a disability
using the limitation of motion diagnostic codes. See Johnson
v. Brown, 9 Vet. App. 7, 10 (1996). The Court interpreted
these regulations in DeLuca v. Brown, 8 Vet. App. 202 (1995),
and held that all complaints of pain, fatigability, etc.,
shall be considered when put forth by the veteran. In
accordance therewith, and in accordance with 38 C.F.R.
§ 4.59, which requires consideration of painful motion with
any form of arthritis, the veteran's reports of pain have
been considered.
The evidence of record shows normal range of motion upon
examination in February 1972. He had some symptoms in the
left upper extremity such as tingling and numbness. The
findings are consistent with mild neurological symptoms under
Code 5293. The lay statements have been considered. Most of
them don't differentiate between the neck and low back. The
medical records of the veteran's overall treatment since 1983
reflect very clearly that he various problems over the years,
but that he had very few complaints referable to his service
connected neck impairment until 1995. The veteran continued
to work in manual jobs over the years. The treatment records
dated from 1983 through August 1995, contain no findings of
limitation of motion or other disabling manifestations that
would reflect more than mild neurological symptomatology
attributable to the neck impairment. It is not until the
October 1995 VA examination that there is evidence of more
than slight limitation of neck motion. The Board
specifically finds that the 25 degrees of forward flexion, 30
degrees of backward extension, 40 degrees of lateral flexion,
45 degrees of rotation to the right and 55 degrees to the
left, found upon examination in October 1995, is moderate
limitation of motion of the cervical spine.
The veteran's treatment records dated from August 1995
through May 2000 contain complaints of neck pain and left arm
involvement, although there are no specific findings of
limitation of motion. Clinical testing performed on April 9,
1998 showed chronic compression deformities of the cervical
spine and a possible compression of the cervical spinal cord.
In August 1998, the veteran was found to have even more
limited neck motion with 30 degrees of forward flexion, 20
degrees of backward extension, 40 degrees of lateral flexion
in both directions, 45 degrees of rotation to the right and
40 degrees to the left.
Based on the evidence as outlined above and resolving all
reasonable doubt in favor of the veteran pursuant to
38 C.F.R. § 4.3, the Board finds that he had no limitation of
motion of the cervical spine, warranting more than a 10
percent evaluation under Diagnostic Code 5290 or more than
mild neurological symptoms similar to that of intervertebral
disc syndrome from the date of his discharge from service
until he was shown to have moderate limitation of motion upon
examination in October 1995. Because the veteran filed a
request for administrative review on July 26, 1995, however,
the Board finds that the effective date for the 20 percent
disability evaluation for moderate limitation of motion
should be the date the request was received. See 38 C.F.R.
§ 3.400. Furthermore, considering the veteran's increased
complaints of pain with movement and exertion in conjunction
with the findings of increased limitation of motion in his
neck upon examination in August 1998, the Board finds that
the veteran currently experiences severe limitation of motion
in his cervical spine. Accordingly, a 30 percent disability
evaluation under Diagnostic Code 5290 is appropriate
effective August 12, 1998, the date of the objective findings
of severe limitation of motion.
As stated above, the veteran may be evaluated under
Diagnostic Code 5293 as an alternative to 5290. The Board
finds that the objective findings of actually radiating
symptomatology prior to July 26, 1995, were not present or
were mild, at best, warranting no more than a 10 percent
disability evaluation. All neurological findings since that
time have shown chronic C-7 radiculopathy with pain and
numbness in the upper extremities not so severe as to limit
the veteran in performing activities on a regular basis.
Accordingly, the Board finds that the veteran's recurring
pain and limitation coupled with chronic C-7 radiculopathy
are moderate, warranting a 20 percent disability evaluation.
There is no evidence of record to support a finding of severe
symptoms with recurring attacks and only intermittent relief.
Thus, a 40 percent evaluation is not appropriate under
Diagnostic Code 5293.
In summary, the veteran is entitled to a 10 percent
disability evaluation for his cervical spine disorder from
February 18, 1971 through July 25, 1995; a 20 percent
evaluation from July 26, 1995 through August 11, 1998; and, a
30 percent evaluation from August 12, 1998, and thereafter.
The effective date for the 10 percent evaluation is set based
upon the veteran's filing of his original compensation claim
within one year of his discharge from the service; the
effective date of the 20 percent evaluation is based upon the
veteran's filing of his request for review, interpreted as a
new claim; and, the effective date of the 30 percent
evaluation is based upon the veteran's increase in symptoms.
See 38 C.F.R. § 3.400.
The potential application of other various provisions of
Title 38 of the Code of Federal Regulations has been
considered, whether or not they were raised by the veteran,
as required by the holding of the Court in Schafrath v.
Derwinski, 589, 593 (1991). The Board finds that the
evaluations assigned in this decision adequately reflect the
clinically established impairment experienced by the veteran.
Accordingly, it must be concluded that the evidence as a
whole does not warrant a disability evaluation in excess of
10 percent for the veteran's cervical spine disability for
any period prior to July 26, 1995, a disability evaluation in
excess of 20 percent for any period prior to August 12, 1998,
and a disability evaluation in excess of 30 percent through
the date of this decision.
ORDER
The schedular criteria for an initial disability evaluation
in excess of 10 percent for the surgical absence of the
spinous processes at C-6 and C-7 and post-traumatic arthritis
at C-6 and C-7, residuals of an old compression fracture, for
the period of February 18, 1971 through July 26, 1995, having
not been met, the appeal is denied.
The schedular criteria for an initial disability evaluation
in excess of 20 percent for the surgical absence of the
spinous processes at C-6 and C-7 and post-traumatic arthritis
at C-6 and C-7, residuals of an old compression fracture, for
the period beginning July 26, 1995, having not been met, the
appeal is denied.
The schedular criteria for a disability evaluation of 30
percent for the surgical absence of the spinous processes at
C-6 and C-7 and post-traumatic arthritis at C-6 and C-7,
residuals of an old compression fracture, have been met as of
August 12, 1998, and this increase is granted, subject to the
legal criteria governing payment of monetary benefits.
BRUCE KANNEE
Member, Board of Veterans' Appeals